European Court provides guidance on religious freedom in the workplace

In a high-profile case concerning the religious discrimination claims of four United Kingdom-based practicing Christians, the European Court of Human Rights (ECHR) on Jan. 15 provided landmark guidance on how the right of religious freedom applies in the workplace.

Nadia Eweida, a check-in staff member for British Airways, and Shirley Chaplin, a nurse, each faced employer restrictions on their visible donning of cross necklaces. Lillian Ladele, a marriage registrar, and Gary McFarlane, a sex and relationship counselor, were terminated after Ladele refused to conduct civil partnership ceremonies for same-sex couples and McFarlane refused to work with gay and bisexual clients.

After U.K. employment tribunals and courts rejected their discrimination claims, the four applicants made complaints to the ECHR, which hears questions of whether EU member states’ laws harmonize with the European Convention on Human Rights. The court combined the four cases to hear and decide as one.

In its judgment in Eweida and Others v. the United Kingdom, the ECHR addressed a number of issues arising at the intersection of employment law and Article 9 of the convention, which provides for “the right of freedom of thought, conscience and religion” and the freedom to manifest those beliefs.

Balancing Act

The court’s central question was whether each employer’s actions constituted “a proportionate means of achieving a legitimate aim.” The court’s reasoning throughout Eweida emphasizes such balances.

Only Eweida’s claim succeeded, with a majority of the ECHR finding that U.K. law, as the tribunals and courts applied it in her case, failed to balance her desire to express religious beliefs with British Airways’ aim of maintaining a certain corporate image.

(In the similar case of Chaplin, the ECHR held unanimously that the no-jewelry policy was proportionate given that the hospital’s legitimate aim of preserving health and safety “was inherently of a greater magnitude” than British Airways’ image concerns.)

Eweida’s cross was discreet, the ECHR found, and “cannot have detracted from her professional appearance”; in addition, there was no evidence that British Airways’ brand or image suffered from other employees wearing approved religious clothing such as turbans and hijabs.

The ECHR concluded that the U.K. authorities in Eweida’s case failed to sufficiently protect her Article 9 right to manifest her religion.

The outcome “does question whether in the U.K. we have sufficient employment protections for employees manifesting their religious beliefs,” says Michael McCartney, head of the employment group at Fasken Martineau in London. “[Eweida’s] case has been going on since 2007, and at each stage in the domestic courts, her argument was rejected. … Now the European Court of Human Rights has recognized that the state itself has this obligation and hasn’t been meeting it.”

Voluntary Practices

The ECHR held in Eweida that the religious manifestation in question need not be a requirement of said religion, such as male Sikhs’ turbans or female Muslims’ hijabs. The U.K. Employment Tribunal that previously dismissed Eweida’s claims had reasoned that for Christians, wearing a cross is a personal choice and thus does not fall within the scope of Article 9, but the ECHR said such a holding would give a higher level of protection to religions with specific rules.

“The fact this has been confirmed is important to those religions [such as Christianity] that are not prescriptive and tolerate different views as to how the religion should be manifested by followers,” says Anna Henderson, professional support consultant for the employment group at Herbert Smith Freehills.

In Eweida, the ECHR also signaled a shift in its approach to Article 9 by holding that it does apply in the employment context.

Previously, the ECHR in a number of cases said that Article 9 essentially cannot apply in the workplace because employees are free to resign and seek employment elsewhere or to practice their religion outside work. It instead concluded in Eweida that “[g]iven the importance in a democratic society of freedom of religion … the better approach” is to consider the possibility of resigning in the overall assessment of an employer’s restriction.

“Before this, employers could assume the convention rights didn’t apply and that therefore the scope of belief protection was defined only by case law from the domestic courts and the European Court of Justice,” Henderson says. “Now, U.K. tribunals will seek to interpret the U.K. law on indirect religious discrimination in accordance with the ECHR ruling.”

Individual Disadvantage

That outcome is especially significant in light of another position the ECHR articulated in Eweida: that most claimants need only establish that they individually faced adverse effects due to an employer’s practice or policy.

In contrast, U.K. authorities previously established that such indirect discrimination requires a showing that the practice or policy adversely affected a group. Now, U.K. courts and/or lawmakers will have to re-examine that interpretation in light of this “individual disadvantage” finding.

“It could be an overwhelming responsibility for an employer to make sure a policy will not infringe on each individual’s preferences and how each individual manifests religious beliefs,” McCartney says.

The U.K.’s Equality and Human Rights Commission has said it will propose guidance in light of Eweida; the case’s full impact on U.K. courts and policy remains to be seen.

“The key thing for U.K. employers is to be aware of the situation and, if they do introduce any provision, criterion or practice, to consider whether [it introduces] any potential discriminatory effects,” says Innes Clark, a partner at Morton Fraser. “If it does, they need to consider very carefully whether [the policy] is a proportionate means of achieving a legitimate aim. It’s a balancing act.”

Wiggle Room

Lillian Ladele, a marriage registrar, and Gary McFarlane, a sex and relationship counselor, sued their employers when they were fired from their jobs after Ladele refused to conduct civil partnership ceremonies for same-sex couples and McFarlane refused to work with gay and bisexual clients. The European Court of Human Rights (ECHR) dismissed Ladele’s and McFarlane’s claims, saying that in both cases, the U.K. authorities had to confront “competing interests”: the individuals’ religious freedom rights and the employers’ worthy aim of nondiscriminatory practices and policies.

EU member states that are party to the European Convention on Human Rights have a certain “margin of appreciation” (i.e., wiggle room) in deciding whether and to what extent an interference by the state is necessary, and in cases of competing interests, the ECHR said that margin is “wide.” In Ladele’s and McFarlane’s cases, it concluded, the U.K. did not exceed the margin of appreciation available to it.